Christman v. Reichholdt

• Decision Date: 06 May 1941
• Docket Number: No. 25565.,25565.
• Citation: 150 S.W.2d 527
• Parties: CHRISTMAN v. REICHHOLDT.
• Court: Missouri Court of Appeals

150 S.W.2d 527

CHRISTMAN v. REICHHOLDT.

No. 25565.

St. Louis Court of Appeals. Missouri.

May 6, 1941.

Rehearing Denied May 20, 1941.

Appeal from Circuit Court, St. Louis County; John A. Witthaus, Judge.

"Not to be reported in State Reports."

Action for personal injuries by Betty Jane Christman, a minor, by A. L. Christman, her next friend, against E. L. Reichholdt. From an adverse judgment, plaintiff appeals.

Affirmed.

Douglas H. Jones, of St. Louis, for appellant.

Hennings, Green, Henry & Evans, of St. Louis, for respondent.

ANDERSON, Judge.

This is an action for damages brought by A. L. Christman, duly appointed next friend of Betty Jane Christman, a minor, 18 years of age, for personal injuries sustained by said Betty Jane Christman, as a result of a collision on September 16, 1938, between an automobile she was driving southwardly on Normandy Drive, about one-half block south of St. Charles Rock Road, St. Louis County, Missouri, and an automobile driven by defendant.

The petition alleges that defendant was negligent in the following respects: (1) in causing his automobile to come to a sudden stop when he knew or should have known that the movement of other vehicles, particularly the one driven by plaintiff, would be endangered; (2) in stopping his automobile suddenly on the traveled part of the highway instead of pulling off of said highway and onto the shoulder thereof; (3) in failing to stop his automobile as near the right-hand side of the highway as practicable in violation of Section 7777, R.S.Mo.1929, Paragraph A Mo.St.Ann. § 7777(a), p. 5213; (4) in violating the rule and custom requiring motor vehicles to refrain from stopping on the traveled part of the highway; (5) in stopping his automobile suddenly and failing to give any signal; (6) in failing to give an appropriate hand signal of his intention to stop; and (7) in failing to give a signal or warning of his intention to stop suddenly.

Defendant's answer consisted of a general denial and a plea of contributory negligence.

Betty Jane Christman was driving her father's car between 9 and 10 A.M., on September 16, 1938, on Normandy Lane, and had as passengers, Virginia McGibbons, also 18 years of age, who was seated in the front seat with plaintiff, and Minnie Giessing, who was in the rear seat. As she was driving adjacent to the Golf Club, on said highway, defendant's automobile turned in front of her car, from a side street, and she then followed defendant's car for two or three blocks, maintaining a distance of 20 to 25 or 30 feet between the two cars. Both cars were traveling at a speed of 20 to 25 m.p.h. When defendant's car was two blocks from St. Charles Rock Road, two young ladies, known to both plaintiff and defendant, walking along the sidewalk to the left side of the road, waved toward the cars, and, according to plaintiff's evidence, defendant suddenly and without warning stopped his automobile in the center of the traveled portion of the highway, and plaintiff was unable to put on her brakes, which were in good shape, and was unable to stop her car in time to prevent a collision. Plaintiff was thrown over the steering wheel into the windshield, sustaining severe injuries. No point is being made as to the injuries.

Plaintiff testified that she had been driving for about two years, and was familiar with Normandy Drive, as she had lived in that vicinity for a year. Normandy Drive had a black top, was higher in the middle than on the sides, and was barely wide enough for two cars to pass. Plaintiff further testified that she was looking straight ahead, had the car under control, and was following defendant's car at a distance of 20 to 25 feet. She could have stopped her car in time to prevent the collision had she been forewarned by a timely signal. Defendant stopped in the center of the road, and did not turn in either direction before he stopped. He did not give any signal. She further testified that she saw the two girls before the accident happened; that she glanced out of the corner of her eye toward them, but didn't turn her head. She had intended to stop to pick them up. When the accident happened she again had her eye on the road. She further testified that she did not tell Mr. Reichholdt that she was waving at the girls and did not see him start to stop. She testified that it was too late for her to stop. She did not think she could stop in 25 feet.

Both Mrs. Minnie Giessing and Virginia McGibbons, the passengers in plaintiff's car, testified that the road was just wide enough for two cars to pass; that both cars were traveling about 20 or 25 miles per hour, and that defendant's car stopped without any warning signal of any kind.

E. B. Whitlock testified that he was driving his automobile about 200 feet behind plaintiff's car; that defendant's car was traveling about 20 to 25 feet in front of plaintiff's car; that all three cars maintained this distance for about a block and a half, and that all three cars were traveling about 20 to 25 m.p.h. He further testified that defendant's car stopped suddenly, without any warning or signal; that the road was narrow and there was no room for him to pass the other two cars, which were traveling in the center of the narrow road. Defendant did not turn his car to the side of the traveled part of the highway before coming to a stop, but stopped suddenly in the center of the road.

Defendant testified that he was traveling about 25 m. p. h., turned into Normandy Lane ahead of Miss Christman's car, and kept up the same speed until he stopped at the time of the collision; that he at no time looked to see how close the Christman car was following his; that he saw the young ladies, who were neighbors of his, on the sidewalk, and intended to stop for them. He did not give any hand signal before coming to a stop, but pulled his car to the right a little, and came to a normal stop. His car was new, brakes were in perfect condition, tires were good, and his stoplight was working. He further testified that his speed was 25 to 30 m. p. h.; that he pulled over as far as he could to the side, and there was room for anyone to pass. After both cars were stopped they were close to the center of the road. The tail-light on his car is on the left side combined with the stoplight which works from the brake pedal. There is no indicator which shows whether the stoplight is working. It does not function until he takes his foot off of the accelerator, puts it on the brake and presses the brake pedal down. He did not put his arm out the left-hand window.

Mrs. Reichholdt testified that she was seated with her husband, who was driving 25 m. p. h. She saw the girls ahead. She would not say her husband stopped suddenly, but he stopped as they usually stopped. He was driving about in the center of the road. She assumed the taillight took care of signals.

Appellant's first assignment of error is that the court erred in giving and reading to the jury defendant's instruction No. 5. Said instruction is as follows: "The Court instructs the jury that if you find from the evidence that defendant Reichholdt's automobile was equipped with an electrical signaling device which was in good working order at the time of the collision in question, which would display a signal plainly visible from the rear and indicating intention to stop, and if you further find that defendant so operated his automobile as to give a signal to stop by means of such electrical device, if any, and if you further find that defendant did not stop suddenly, then defendant owed no duty to signal with his hand and arm and cannot be charged with negligence for failure to signal his intention to stop with his hand and arm."

Appellant says that there was no evidence to support the instruction, his first point being that there was no evidence that the electric signal did operate at the time of the accident. The record, however, contains the following testimony of the defendant:

"I then owned a 1938 2-Door Pontiac equipped with standard equipment, taillight and stop-light combined. The car was still a new car, almost a new car. The stop-light was working on September 16, 1938.

* * * * * *

"Q. Do you know whether this stop-light was in working order on the 16th of September, 1938? A. Absolutely.

"Q. At the time of this accident? A. Yes, sir."

We believe the foregoing evidence was sufficient to warrant the jury in finding that the electric signal was in good working order and did operate on the day of the accident.

Appellant next complains that there was no evidence in the record that "defendant did not stop suddenly."

The additional abstract of the record filed by the respondent contains the following testimony:

By Mr. Reichholdt: "Q. Will you tell the jury whether you stopped normally or suddenly? A. Well, just a normal stop, there was no reason to hurry anything."

By Mrs. Reichholdt: "Q. Can you tell us whether the car, your husband's car, was stopped suddenly or not, at that time? A. Well, no, I wouldn't say suddenly, just as we usually stop."

Appellant's final contention with respect to this instruction is that it is erroneous under the decision in Ritz v. Cousins Lumber Co., 227 Mo.App. 1167, 59 S. W.2d 1072, and that a similar instruction was condemned in Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678.

Section 7777(h), R.S.Mo.1929, Mo.St. Ann. § 7777(h), p. 5214, provides that: "An operator or driver when stopping, or when checking the speed of his vehicle, if the movement of other vehicles may reasonably be affected by such checking of speed, shall extend his arm in a horizontal position so that the same may be seen in the rear of his vehicle."

Section 7777(k), R.S.Mo.1929, Mo.St. Ann. § 7777(k), p. 5214, provides: "If a motor vehicle is equipped with a mechanical or electrical signaling device, which will display a signal plainly visible from the rear and indicating intention to turn or stop, or that the speed of the...